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03/02/84 STATE NEBRASKA v. ANTONIA A. DREW

March 2, 1984

STATE OF NEBRASKA, APPELLEE,
v.
ANTONIA A. DREW, APPELLANT



Appeal from the District Court for Douglas County: Paul J. Hickman, Judge.

Krivosha, C.j., Boslaugh, Hastings, Caporale, Shanahan, and Grant, JJ., and Colwell, D.j., Retired.

SYLLABUS BY THE COURT

1. Homicide: Words and Phrases. Manslaughter is the killing of another without malice, either upon a sudden quarrel or unintentionally while in the commission of an unlawful act. Neb. Rev. Stat. § 28-305(1) (Reissue 1979).

2. Homicide: Self-Defense. A killing resulting from the accidental discharge of a gun during a scuffle, while the gun is being used in an attempt to strike the other party, is excused only if the force used was justified under the circumstances.

3. Homicide: Lesser-Included Offenses: Jury Instructions. When, in a prosecution for murder, the evidence will support a finding of manslaughter, the trial court is required to give such an instruction.

4. Trial: Witnesses: Prior Inconsistent Statements: Impeachment. When a nonparty witness admits making earlier statements contradicting his testimony at trial, the earlier statements are not admissible for purposes of impeachment.

The opinion of the court was delivered by: Boslaugh

The defendant, Antonia A. Drew, appeals from her conviction for manslaughter and her sentence to 10 years' imprisonment.

The evidence shows that on the morning of October 6, 1982, the defendant and the victim, Sandra Shepherd, were involved in an argument on the sidewalk at 24th and Franklin Streets in Omaha, Nebraska. Witnesses testified that they heard shouting between the two women and saw what appeared to be a scuffle. The defendant testified that Shepherd had begun an argument with her, cursed at her, and had threatened her. The defendant testified that Shepherd picked her up and threw her against a van. During the scuffle, the defendant pulled a gun from her pocket. The defendant testified that when she attempted to hit Shepherd in the head with the gun, the gun discharged accidentally, wounding Shepherd.

The bullet entered above the left eye and lodged in the brain of the victim. The defendant ran from the scene but surrendered to the police on October 7, 1982. The victim was taken to St. Joseph's Hospital where she died on October 12, 1982, as a result of the gunshot wound.

When the defendant surrendered to the police she was arrested, given Miranda warnings, and charged with assault. After the victim died the defendant was charged with second degree murder. Following trial to a jury she was convicted of manslaughter and sentenced to 10 years' imprisonment.

The defendant contends that it was error for the trial court to refuse to give a tendered instruction on the defense of accident or excusable homicide; that it was error to submit manslaughter to the jury; and that it was error to exclude certain evidence offered for the purposes of impeachment.

The defendant requested an instruction that, although she did not rely on the defense of self-defense, she was privileged to use force in protecting herself; and if such action unintentionally and unexpectedly caused the death of the victim, the defendant could not be found guilty of second degree murder or manslaughter. The defendant also requested an instruction that the burden was upon the State to prove, beyond a reasonable doubt, that the killing was not accidental.

The court refused to give the requested instructions. However, the court did instruct on the defense of justification or self-defense, in accordance with the provisions of ...


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